Community Life v Kilmory [2007] NSWSC 943

Reported Decision : (2007) 25 ACLC 1,299

New South Wales Supreme Court

CITATION : Community Life v Kilmory [2007] NSWSC 943 This decision has been amended. Please see the end of the judgment for a list of the amendments.

HEARING DATE(S) : 16 August 2007 JUDGMENT OF : Hammerschlag J

EX TEMPORE JUDGMENT DATE : 16 August 2007

DECISION : The Amended Originating Process dated 30 July 2007 is dismissed

CATCHWORDS : CORPORATIONS – Corporations Act 2001 (Cth) ("the Act") Ch 2K - Company charges – Memorandum of discharge lodged by chargee on basis of agreement that chargor would make certain payments which it failed to make – Whether s 266(4) or s 1322(4)(d) of the Act available to reinstate charge – Whether s 274 or s 1322(4)(b) available to rectify Register of Company Charges – Relief not available

LEGISLATION CITED : Corporations Act, 2001 (Cth)

CASES CITED : David Grant v Westpac Banking Corporation (1995) 184 CLR 265 Anthony Hordern & Sons Ltd v Amalgamated Clothing and Allied Trades Union of Australia (1932) 47 CLR 1

PARTIES : Community Life Limited Kilmory Developments Pty Limited

FILE NUMBER(S) : SC 3637/2007

COUNSEL : P.E. Cullen (Plaintiff) Ex parte

SOLICITORS : The Argule Partnership (Plaintiff)

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HAMMERSCHLAG J

16 AUGUST 2007

3637/2007 COMMUNITY LIFE LIMITED –V- KILMORY DEVELOPMENTS PTY LIMITED EX TEMPORE JUDGMENT

Introduction 1 HIS HONOUR: This application concerns a fixed and floating charge ("the charge") which, on 24 October 2006, the plaintiff company took from the first defendant company over that company's property, undertaking and assets. 2 Lodgement of notice of the charge with the Australian Securities and Investments Commission ("ASIC") as required by s 263(1) of the Corporations Act 2001 (Cth) (the "Act") duly occurred and the charge was registered. The charge was entered the Australian Register of Company Charges (the "Register") on 25 October 2006. Under s 265 of the Act, ASIC must keep the Register and cause to be entered in it particulars of charges in respect of which notice is lodged. 3 However, in the circumstances which are described below, on 22 November 2006 the plaintiff lodged a memorandum (or notification) of discharge or release of charge. The memorandum was entered in the Register. 4 By Amended Originating Process dated 30 July 2007 the plaintiff seeks an order that the period within which it may lodge notice of the charge be extended to a future date, or, in the alternative, that the Register be rectified by the charge being re-registered.